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58 Procurement Law. 1 (2023)

handle is hein.journals/procurlw58 and id is 1 raw text is: 9r~ear SECTION OF PUBLIC CONTRACT LAW AMERICAN BAR ASSOCIATION VOLUME 58, NUMBER 1 WINTER 2023 *M AMERICANBARASSOCIATION Public Contract Law Section Contractor Compliance and Internal Investigations: Practical Strategies for 2023 and Beyond BY DIANA LYN CURTIS McGRAW AND NICHOLAS T. SOLOSKY Nicholas T. Solosky Allegations of misconduct on a federal project represent a significant crossroads for a government contractor. The contractor must quickly assess the source of the allega- tions and whether they rise to the level of requiring dis- closure to the government. The process of making that determination (i.e., whether Diana Lyn Curtis McGraw is a partner in the Washington, D.C., office of Fox Rothschild. As a member of the firm's Federal Government Contracts group, she centers her practice on federal compliance and provides advice on bet-the-company risks. She conducts investigations and counsels companies on potential exposure to allegations of misconduct related to the False Claims Act, Anti-Kickback Act, and CTIP violations. She leverages her insider perspective, having managed a federal compliance program for a leading U.S. federal contractor, to provide practical and pragmatic regula- tory advice. Nicholas T. Solosky is a partner in the Washington, D.C., office of Fox Rothschild. He represents government contractors in a full range of federal and public contracts, with an emphasis on regulatory com- pliance, procurement disputes, and claim resolution. His experience in- cludes advising on internal investigations and the prosecution and defense of suits brought under the False Claims Act, Anti-Kickback Act and the Procurement Integrity Act. He also represents protestors and intervenors in bid protest matters in federal procurements. to disclose to the government) should be serious, delib- erate, and process driven. Internal compliance programs should provide a smooth transition to an internal investi- gation when required, including standards for how to con- duct the investigation. Standard measures include: How will the company review and collect documents? Who are the relevant witnesses who should be interviewed-and who will conduct those interviews? Will outside counsel be involved? Should the investigation conclude with a written report? In this article, we examine the internal and external triggering events that require companies to initiate in- ternal investigations. We also walk through the practical steps of conducting an investigation, including properly staffing an investigative team, preparing for witness inter- views, and ensuring that investigation reports and other important investigation materials remain protected. This article also tackles the monumental question of the steps a contractor needs to take if the investigation continued on page 10 Contractor Compliance and Internal Investigations: Practical Strategies for 2023 and Beyond News from the Chair Unfair Competitve Advantage Arising From Former Agency Employees 1 2 3 Published in The Procurement Lawyer, Volume 58, Number 1, Winter 2023. © 2023 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. Diana Lyn Curtis McGraw